Legal History Commons^™

Passion And Nation: War, Crime, And Guilt In The Individual And The Collective, Steve Sheppard

Steve Sheppard

Riffing off of George Fletcher's theory of Romanticism and war, the article reviews Fletcher's arguments, which received derisive reviews during the War against Iraq in 2003. The article takes Fletcher's approach seriously in considering the problem of war as a Romantic impulse, and the difficulties caused by that understanding. The article then derives arguments on the limits of the laws of war to apply to military actions against terrorism. The article considers the nature of collective guilt as a mitigating element in the crimes of one individual, and it considers the nature of non-state enemies in war. This last point …

The Metamorphoses Of Reasonable Doubt: How Changes In The Burden Of Proof Have Weakened The Presumption Of Innocence, Steve Sheppard

Steve Sheppard

The standard of proof beyond a reasonable doubt is commonly thought to be an important benefit to the accused. The history of the standard is much more complex and demonstrates lesser commitments to the truth and to the defendant.

This article develops the history of the reasonable doubt instruction in the United States and its English antecedents. Examining the development of the instruction in the seventeenth and eighteenth centuries and its evolution through the nineteenth and twentieth, this history reveals the dual nature of the instruction. It both encapsulated a theory of knowledge and articulated a level of confidence in …

Verdict According To Conscience: Perspectives On The English Criminal Trial Jury 1200-1800, Thomas A. Green

Books

This book treats the history of the English criminal trial jury from its origins to the eve of the Victorian reforms in the criminal law. It consists of eight free-standing essays on important aspects of that history and a conclusion. Each chapter addresses the phenomenon that has come to be known as "jury nullification," the exercise of jury discretion in favor of a defendant whom the jury nonetheless believes to have committed the act with which he is charged. Historically, some instances of nullification reflect the jury's view that the act in question is not unlawful, while in other cases …

Just War-A Legal Concept?, Arthur Nussbaum

Michigan Law Review

During the century preceding the First World War the topic of "just war," frequently and intensely treated in earlier periods, had almost disappeared from the writings on international relations. Since the end of the war, however, the issue has been revived by writers within and without the legal profession. The present article purports, principally by an inquiry into its historical background, to determine its legal relevance.